Denial of mother’s and maternal grandmother’s motion to dismiss paternal grandparents’ petition for visitation rights or in alternative to transfer case for improper venue, reversed, as mother was not properly served with process , even though she was subject to personal jurisdiction pursuant to Georgia’s long-arm statute; clear and convincing evidence rebutted paternal grandparents’ prima facie case of proper service under long-arm statute based on sheriff’s return of service, since sheriff served mother at maternal grandmother’s prior Georgia address, even though mother was residing in Arizona at that time, and paternal grandparents submitted no evidence showing that service was proper other than sheriff’s return of service; venue was not proper in Effingham county, since maternal grandmother moved to Chatham county before paternal grandparents filed their petition; although maternal grandmother continued to utilize her former Effingham county residence address to retain certain benefits including filing temporary guardianship petition there and keeping her children in Effingham county schools, evidence showed that she was domiciled in Chatham county, so case remanded with direction for trial court to transfer it to Chatham County Superior Court.

Oglesby v. Deal, A11A1239 (09/08/11)

Fulton County Daily Report, September 23, 2011

Dismissal of petition seeking custody of plaintiff’s two minor granddaughters, reversed, as trial court erred in concluding that plaintiffs failed to state claim; petition gave fair notice that plaintiffs sought custody of children under O.C.G.A. §§ 19-7-1 (b.1) and 19-9-2 based on mother’s alleged murder of father, and these allegations were sufficient to survive motion to dismiss; collateral estoppel did not bar custody action because plaintiff’s prior unsuccessful petition for visitation involved different legal issues; res judicata did not bar custody action because O.C.G.A. § 19-9-45 only applies to issues actually decided in prior action and visitation order related to plaintiffs’ right to visitation, not custody.

Scott v, Scott, A11A1206 (09/20/11)

Fulton County Daily Report, October 7, 2011

Denial of parents’ motion to dismiss grandparents’ petition for grandparent visitation of child who was conceived with grandparents’ son but later adopted by father, REVERSED; because adoption statute’s definition of parent includes legal father of child, trial court ERRED in declining to dismiss grandparents’ motion because limiting language of O.C.G.A. 19-7-3(b) – forbidding original actions for grandparent visitation if parents are together and living with child – therefore also includes adoptive parents.

Bailey v. Kunz, A10A1809 (02/03/2011)

From:  Fulton County Daily Report, 2/18/2011

Denial of father’s motion for summary judgment, AFFIRMED, in action brought by child’s maternal grandparents seeking visitation with child; trial court DID NOT abuse its discretion in denying summary judgment, pursuant to O.C.G.A. 9-11-56(f), to allow guardian ad litem to investigate facts as some evidence showed that lack of relationship between grandparents and child might not be fault of grandparents.

Lightfoot v. Hollins, A10A1923 (01/26/2011)

From:  Fulton County Daily Report 2/11/2011

Criminal contempt order requiring Rhode Island resident to pay $5K fine and be imprisoned for 200 days for her failure to comply with terms of temporary modification of parental grandparents’ visitation rights to her two children REVERSED; trial court had jurisdiction over grandparents’ modification action, since initial custody determination complied with OCGA 19-9-61, children’s father still lived in Georgia, and personal jurisdiction over mother was not necessary in order to address requested modification; trial court lacked personal jurisdiction under Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) over mother for contempt and personal service of mother outside Georgia was invalid under circumstances;  Court relied on Ashburn v. Baker, 256 Ga. 507 (1986), which held that Georgia courts did not have personal jurisdiciton over non-risident mother, who was served outside Georgia, under either now-repealed UCCJEA or long arm statutue, and found the UCCJEA required same result; UCCJEA specifically addresses continuing jurisdiction of cusotdy issues, but not contempt issues and it did not repeal any existing statutory provisions covering divorce, custody, alimony or child support procedures; mother did not admit personal jurisdiciton when she failed to respond to discovery served with complaint, since return of service only showed that she was served with summons and complaint, not discovery; contempt order was not enforceable in Rhode Island pursuant to UCCJEA, since applicable provisions referred to custody determinations and did not includ contempt orders.

Daniels v. Barnes,  A07A1719 (03/04/08), 08 FCDR 795

Fulton County Daily Report, 03/21/2008

Order granting maternal grandmother visitation rights with her daughter’s two children, pursuant to Georgia’s Grandparent Visitation Statute, AFFIRMED; daughter could not challenge visitation order, since she aided in causing order by moving trial court to enforce earlier visitation agreement and there was no evidence of fraud or mistake; daughter was authorized to file instant appeal, pursuant to OCGA 5-6-34(a)(11); Court declined to dismiss daughter’s appeal and denied grandmother’s motion to sanction daughter for filing frivolous appeal.

Hargett v. Dickey, A10A0762 (05/20/2010), 10 FCDR 1702

From:  Fulton County Daily Report (06/04/2010).

Denial of former foster parents’ petition to adopt minor, AFFIRMED; trial court did not err in holding that foster parents lacked standing to pursue adoption, because OCGA 19-8-5(a) provides for adoption, if living parents have voluntarily surrendered their rights in writing to third person pursuing adoption and, in this case, parents surrendered their rights to minor’s maternal grandmother; trial court did not err in disregarding OCGA 49-5-281, Foster Parent’s Bill of Rights, because trial court did consider foster parents throughout doption process and Department of Human Services has absolute discretion in adoption decisions; evidence supported trial court’s decision that it would be inminor’s best interest to remain at material grandmother’s house; previous appellate deicsion, holding that there was no evidence supporting finding that adoption by maternal grandmother was in minor’s best interest, did not demand finding that adoption by foster parent was in child’s best interest; foster parents’ argument based on OCGA 19-8-18(d) rejcted, because that section is based on peitions brought pursuant to OCGA 19-8-5, which was inapplicable.

Owen v. Watts, A10A0774 (04/13/2010), 10 FCDR 1448

From:  Fulton County Daily Report (4/13/2010)

Grant of visitation to maternal grandmother VACATED, and case remanded with direction for trial court to determine, using clear and convincing standard, whether grandchildren’s health or welfare would be harmed unless visitation is granted and whether visitation is in children’s best interests; trial court did not make these necessary findings of fact, as required by OCGA § 19-7-3 (c), and appellant only approved of form of final order, not its contents.

Cates v. Jamison, A09A1938 (12/07/09), 09 FCDR 4075

From:  Fulton County Daily Report, 12/31/2009.

Termination of mother and father’s parental rights and award of custody to DHR, AFFIRMED, juvenile court did not lack jurisdiction to proceed with dispostional hearing, even though parents executed voluntary surrender in favor of maternal great-grandparents on September 15, 2008, since juvenile court’s order, wich was not filed until September 17, 2008, clearly stated that it was nunc pro tunc to September 3, 2008, date of termination hearing; juvenile court did not abuse its discretion in treating great-grandparents’ ages as dispositive factor in dispositional hearing, because juvenile’s court’s duty to consider best interest of child gives court discretion to consider many factors and evidence showed that DHR recommended foster family for child’s long-term placement and child had developed attchements to family.

In the Interest of D.C.H., A09A1557 (11/06/09)

From:  Fulton County Daily Report, 12/4/2009

A GA parent who  tests positive for marijuana and cocaine at the inception of a case, has a history of marijuana use, lacks stable and suitable housing, has no stable employment, does not pay child support and continues to reside with the children’s other parent, who has a chronic drug and alcohol abuse problem supports the termination of the parent’s parental rights to her children.

If a court grants a parent application for discretionary appeal, the parent can not show harm from the juvenile court’s alleged failure to provide a transcript.

A juvenile court does not abuse its discretion in determining the children should stay in their stable foster home , where the children have bonded with the foster parents and the foster parents wished to adopt them rather than a grandparent who is away from home for months at a time.

In the Interest of J.J.  A09A1330 (07-17-09)

Judges:  M. Anthony Baker, Cherokee Juvenile Court;  Bernes, Smith, Phipps

For more information contact:  CJ Remboldt